ONCA 2021

The appellant, found not criminally responsible on account of mental disorder (NCRMD) for attempted murder, appealed the Ontario Review Board's (ORB) decision to continue his conditional discharge, seeking an absolute discharge.

He argued the ORB's finding of a significant threat to public safety was unreasonable and presented fresh evidence of improved stability and a developed therapeutic relationship with his community psychiatrist.

The Court of Appeal dismissed the appeal, finding the ORB's original decision reasonable at the time it was made.

While admitting the fresh evidence, the majority declined to grant an absolute discharge, preferring that the ORB, as the expert body, make that determination at an already scheduled early review hearing.

A dissenting judge would have granted the absolute discharge based on the fresh evidence.

This appeal addressed the Small Claims Court's jurisdiction to appoint a representative defendant for an unincorporated association, specifically a trade union, in a wrongful termination claim.

The appellants argued that the Small Claims Court Rules contained an "omission" regarding such orders, precluding reference to the Rules of Civil Procedure.

The Court of Appeal affirmed the Divisional Court's decision, holding that the Small Claims Court Rules themselves provided the necessary authority for such orders, and that reference to the Rules of Civil Procedure was discretionary but not essential.

The court found no legislative intent to exclude unincorporated associations from the Small Claims Court's jurisdiction, emphasizing the court's role in facilitating access to justice.

The appellant, Lina Ahmed, appealed the dismissal of her action against Justice of the Peace Louise Logue under Rule 2.1.01 of the Rules of Civil Procedure.

The action alleged a Charter infringement due to the Justice of the Peace's refusal to accept a peace bond application.

The Court of Appeal upheld the motion judge's decision, finding that a Justice of the Peace enjoys absolute immunity from civil liability in the exercise of judicial functions, rendering the claim frivolous and devoid of merit.

The Court also affirmed the motion judge's discretion to dismiss the action without seeking submissions from the appellant, as permitted by Rule 2.1.01(3).

The appellant, BSAR (Eglinton) LP, appealed a trial judgment that awarded a real estate commission to the respondent, Harvey Kalles Realty Inc. The appellant argued that a condition for the commission, related to the definition of "Tenant" in a Commission Agreement and the automatic termination of an offer to lease, was not met.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors or errors in law in the trial judge's interpretation of the agreements.

The court affirmed the trial judge's finding that the objective intention of the parties was for the commission to be paid if a lease was concluded with any Loblaw entity, and that the offer to lease had not terminated.

This is a motion to quash an appeal brought by Andrew Henry Ting against two orders made in the bankruptcy proceedings of his father, James Henry Ting.

The orders included an enforcement of a Hong Kong letter of request for production and examination, and a subsequent contempt finding and penalty for non-compliance.

The appellant argued he had a right of appeal under s. 193(a) of the Bankruptcy and Insolvency Act (BIA) on the basis that the point at issue involved "future rights," specifically procedural fairness regarding a recusal request.

The Court of Appeal held that the orders were subject to BIA appeal routes and that issues of procedural fairness engage present, not future, rights.

Consequently, the appeal was quashed.

This is an appeal and cross-appeal from a Superior Court judgment concerning an oppression remedy claim.

The appellants (defendants) challenged the trial judge's valuation of shares, award of equitable damages, refusal to admit fresh evidence, and refusal to reconsider a Rule 59 motion.

The cross-appellants (plaintiffs) challenged the trial judge's findings on fiduciary duty, the 2012 share purchase agreement, quantum of equitable damages (interest), punitive damages, and transaction structure for share repurchase.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's decisions on all substantive issues, including the valuation, equitable damages, and the refusal to admit fresh evidence or reconsider motions.

Both parties' requests for leave to appeal costs were also refused.

The appellant, Stephen Campbell, brought a motion before the Court of Appeal for an order that a fresh psychiatric report be prepared to support his not criminally responsible (NCR) defence, which was rejected at trial.

The court found that nothing of substance had changed since the original psychiatric reports were prepared for trial and carefully reviewed by the trial judge.

The motion was dismissed, as there was no proper basis for ordering a fresh psychiatric report.

This is an application to re-open an appeal, brought by the applicant after her initial appeal of a habeas corpus dismissal was rejected.

The applicant sought to introduce what she characterized as "fresh evidence" to argue that the trial court lacked jurisdiction for her conviction.

The Court of Appeal dismissed the application, finding that the proposed "fresh evidence" was merely further legal argument and did not satisfy the test for admission of fresh evidence as established in Palmer v. The Queen.

Furthermore, the court found the arguments irrelevant to the sufficiency of the application judge's original reasons.

The appellant, Ian Bullens, appealed his sentence, arguing the sentencing judge erred by not granting a "Downes credit" for stringent bail conditions that allegedly prevented him from seeing his children.

The Court of Appeal found no error in principle, noting that the issue was not fully brought to the sentencing judge's attention and that Downes credits are reserved for "stringent" conditions, which were not met in this case.

The conviction appeal was abandoned, and the sentence appeal was dismissed.

The appellant, C.K., appealed his sentence of six years concurrent for assault, assault causing bodily harm, sexual assault, and unlawful confinement.

The appeal raised two issues: an alleged miscalculation of pre-sentence custody credit and an unreasonable delay between conviction and sentence.

The Court of Appeal found no error in the pre-sentence custody calculation.

Regarding the delay, the court noted that a significant portion was attributable to the appellant's own application and other factors, and thus the total delay was not unreasonable.

Leave to appeal sentence was granted, but the appeal itself was dismissed.

The appellant, R.C., appealed convictions for sexual assault, sexual interference, incest, and assault.

The primary issues on appeal were whether the trial judge's oral reasons for conviction were sufficient, and whether subsequently released "edited reasons" could be considered.

The Court of Appeal held that the edited reasons, released nearly two years after the oral reasons and after the appeal had commenced, could not be relied upon due to their substantive changes.

The court then assessed the sufficiency of the original oral reasons, finding that the trial judge adequately addressed material inconsistencies in the complainant's evidence and properly applied credibility principles, including those from R. v. W.(D.).

The appeal was dismissed, affirming the convictions.

The appellant, Jeremy Reddick, appealed his convictions for second degree murder and assault with a weapon, alleging errors in the trial judge's jury instructions concerning after-the-fact conduct, intoxication, and the permitted use of his spontaneous utterance "They jumped me." The Court of Appeal found that while some instructions could have been more thorough, they did not amount to reversible error or cause a substantial wrong or miscarriage of justice, particularly given the lack of objection at trial and the overall context of the case.

The appeal was dismissed.

The appellant, a youth convicted of two counts of second-degree murder, attempted murder, aggravated assault, and reckless discharge of a firearm stemming from a mass shooting, appealed the imposition of an adult sentence.

The appellant argued that the sentencing judge erred by misunderstanding the Intensive Rehabilitative Custody and Supervision (IRCS) program and by failing to consider collateral immigration consequences.

The Court of Appeal found no reversible error, concluding that the alleged IRCS error did not impact the sentence and that immigration consequences could not reduce a sentence to a point disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

The appeal was dismissed.

The appellant was convicted of assault with a weapon, possession of a weapon, break and enter, and theft.

Identity was the primary issue at trial.

The trial judge found the appellant guilty, rejecting his explanation for his whereabouts as fabricated.

The Court of Appeal allowed the conviction appeal, finding that the trial judge erred by drawing an inference of guilt from a finding of fabrication without independent evidence.

The convictions were set aside, and a new trial was ordered on all charges.

The sentence appeal was not addressed.

The appellant, Libin Jama, appealed the parole ineligibility portion of her life sentence for second-degree murder, which was set at 12 years.

The Court of Appeal dismissed the appeal, finding no error in principle in the sentencing judge's decision.

The sentencing judge had properly considered all relevant factors under s. 754.4 of the Criminal Code, including the violent nature of the attack and the age differential between the assailants and the victim, and was not bound by juror recommendations.

The appellant, convicted of sexual assault against two young teenagers, appealed his conviction and sought leave to appeal his sentence.

The appeal focused on the trial judge's credibility assessment of the complainants, specifically the use of "lack of exaggeration" as a factor.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's reasoning, interpreting the impugned passages as noting the absence of factors that would diminish credibility rather than using lack of exaggeration as a positive makeweight.

Leave to appeal sentence was granted, but the sentence appeal was also dismissed, as the imposed prison term of 8.5 years was within the appropriate range given the breach of trust and serious consequences for the victims.

The appellant insurer appealed a summary judgment that found an "under construction" exclusion clause in a homeowner's policy did not apply to water damage.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that whether a property is "under construction" is a question of fact and that the renovations in this case were not sufficient to trigger the exclusion.

The court declined to provide a general definition for "under construction," emphasizing that exclusion clauses are construed narrowly and the insurer bears the burden of proof.

This is a costs endorsement from the Court of Appeal for Ontario.

In accordance with an agreement between the parties, the appellants were ordered to pay costs to the respondents, Mandeep Dhatt and Kulwinder Dhatt, fixed at $8,200, and to the third party respondents, Jay Brijpaul and Re/Max West Realty Inc., Brokerage, fixed at $6,700.

Both amounts were inclusive of disbursements and applicable taxes.

The purchase price under the agreement of purchase and sale dated January 22, 2016, was to be reduced by the amount of these costs.

The appellant, Sara Fuller, appealed her convictions on five counts of possession of drugs for the purpose of trafficking.

The appeal challenged the validity of the search warrant that led to the discovery of the drugs, arguing insufficient grounds and staleness of information.

The appellant also raised an issue with the trial judge's reference to her failure to testify.

The Court of Appeal dismissed the appeal, finding that there were sufficient grounds for the search warrant and that the two-month delay did not render the information stale given the nature of the stolen goods.

The court also concluded that the trial judge's reference to the appellant's failure to testify, while not ideal, did not undermine the conviction as it was intended to demonstrate the absence of alternative reasonable inferences in a circumstantial case.

The City of Ottawa appealed a trial judgment that found it liable for negligent misrepresentation to Charlesfort Developments Limited.

Charlesfort claimed the City failed to accurately inform it about a water main in an easement during a rezoning process, leading to significant project delays and increased costs for a condominium development.

The Court of Appeal allowed the City's appeal, holding that the City did not owe Charlesfort a private law duty of care.

The Court clarified that the City's undertaking in processing a rezoning application was to fulfill its statutory duty in the public interest, not to protect the developer's economic interests or assure project viability.